Site Manager Expected, Appropriate at Board Meetings

Question: Is it appropriate for the on-site manager of our condominium complex to attend board meetings and answer questions from the owners and residents that are directed to the board?

It seems to me that she is not a member of the board and that she should not be seated at the board table.

Also, is it appropriate for the manager to attend executive sessions of the board? We have a board secretary who is supposed to take minutes, but the association manager performs this task for regular board meetings and executive sessions.

Answer: In every on-site management position that I have held, I was expected to attend and participate in almost every board meeting, including executive sessions. As an agent of the association, the manager is entitled to attend at the discretion of the board members.

If the board wishes, the manager may be seated at the board table, and that is where most managers sit. A professional, experienced manager often has a great deal of influence on the board’s decisions.

The board has the right to rely on the manager’s and other professionals’ opinions when making business decisions because the manager often knows more than individual board members about the day-to-day business of the association. Meetings therefore often provide a time for management to exchange information with the board as well as with members.

Most governing documents give the board the authority to delegate duties to a manager or other agent. Many associations have the minutes prepared by a manager or recording secretary.

The bylaws may state that the board secretary is responsible for the board meeting minutes, but in many cases the secretary simply ensures that the work is done in a timely and accurate manner and signs the minutes after they have been approved.

The board is still responsible for timely production and approval of the minutes. If it feels that the manager is slanting the wording of the minutes, the board can appoint someone else or pay for the services of a recording secretary.

Law Limits the Use of Telephone Voting

Q: The directors of my association recently took a phone vote to take care of some business. Shouldn’t they have met in person?

A: You haven’t provided enough information for me to give you a definite answer. However, if this was considered a “teleconference meeting,” California Civil Code Section 1363.05 states that members of the association are supposed to be informed of the meeting, allowed to attend and speak to the board at any board meeting unless the meeting is in executive session.

The law allows an emergency board meeting to be called if some unforeseen occurrence requires immediate board attention.

California Corporations Code Section 7211(a)(6) states: “Members of the board may participate in a meeting through use of conference telephone, electronic video screen communication, or other communications equipment . . . if all of the following apply:

(A) each member participating in the meeting can communicate with all of the other members concurrently;

(B) each member is provided the means of participating in all matters before the board, including, without limitation, the capacity to propose, or to interpose an objection to, a specific action to be taken by the corporation;

(C) the corporation adopts and implements some means of verifying both of the following:

(i) a person participating in the meeting is a director or other person entitled to participate in the board meeting;

(ii) all actions of, or votes by, the board are taken or cast only by the directors and not by persons who are not directors.”

In addition, Section 7211(b) of the Corporations Code states:

“An action required or permitted to be taken by the board may be taken without a meeting, if all members of the board shall individually or collectively consent in writing to that action. The written consent or consents shall be filed with the minutes of the proceedings. The action by written consent shall have the same force and effect as a unanimous vote of the directors.”

Get Legal Advice About Enforcing Pet Statute

Q: Our association’s declaration of covenants, conditions and restrictions state that an owner may have one pet whose weight does not exceed 30 pounds.

One owner has two cats and now has acquired a dog that exceeds the weight limit by 25 to 30 pounds. The board has not made any attempts to enforce the restriction against the second cat.

Now several owners have complained about the dog.

The board notified the owner that a fine of $25 a month would be levied until the dog was removed. The owner is just paying the $25 fee every month rather than getting rid of the dog.

Can the board of directors force her to get rid of the dog?

A: Your association needs legal advice from an attorney who is well-versed in association statutes and case law. The California Supreme Court decision in the Nahrstedt vs. Lakeside Village Condominium Assn. case confirmed that pet restrictions are enforceable. You’ve learned that levying a fine is not effective.

The board should not have ignored the second cat. There is a lesson here for all boards. If the board is not inclined to enforce the restrictions, get an attorney’s advice about the matter.

It would be better to amend the documents rather than just ignore enforcement. For instance, if a super majority of the owners think that cats are acceptable, then amend the documents. Amendment procedures are found in the codes. It usually takes either 66% or 75% approval of all members to amend them.

In certain situations when the board wants to grant a variance, it may be possible with an attorney’s guidance. It is important to document your decision, show reasons for the variance and make sure that you are not setting a precedent that will waive the right to enforce the restriction in the future.

Jan Hickenbottom is a community association management consultant and a founding director of the California Assn. of Community Managers. She selects questions of general interest for the column and regrets that she cannot respond to all questions. Send questions to: Condo Q&A;, Private Mailbox 263, 4790 Irvine Blvd., #105, Irvine, CA 92620-1998.